Content Moderation, Digital Rights
Scarborough v. Frederick County School Board
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The Regional Court of Hamburg in Germany held that a well-known individual was entitled to injunctive relief against Google, requiring it to remove all images of the individual engaged in sexual intercourse posted within the Federal Republic of Germany on all pages belonging to the domain of google.de. After a British tabloid newspaper published the photos of the individual, he engaged repeatedly with Google to remove the images from their Google Images search index but, although Google complied with the requests, versions of the images continued to be published online and appear in Google’s search results. The individual approached the Court, arguing that Google had infringed his personality rights under article 2(1) in connection with article 1(1) of the German Basic Law and was liable to remove all images from their search results. The Court noted that the nature of the images meant that the individual’s personality rights were infringed and that Google had an obligation to take action to prevent the re-emergence of the images in its search results.
In 2008, a British tabloid newspaper, The News of the World, published an article which included still images and videos of Max Mosley, former president of the International Automobile Federation (FIA), engaged in sexual intercourse. Mosley had been filmed by means of secret cameras during sexual intercourse with five women, which included sadomasochistic practices. The tabloid article was distributed via the internet, and the reporting attracted considerable attention from the press and the public internationally.
On March 12, 2010, Mosley’s attorneys indicated to a German affiliate of Google (www.google.de) that the secretly created recordings were disseminated via the Google Image search engine and violated Mosley’s privacy. There was continued correspondence between the attorneys and Google and on May 28, 2010, Google confirmed the deletion of 29 images which Mosley’s attorneys had objected to (in a list with the respective URLs) from the search results at google.de. In July 2010, Mosley requested the deletion of further recordings, pointing out that there were thousands more versions of the still images among the 192 000 search results and Google had to set up a filter. Google informed Mosley in July 2010 and February 2011 that it had deleted further search results but did not sign a declaration to cease and desist, as demanded by Mosley.
Mosley found that, when entering certain keywords into the Google’s image search function, the secretly obtained pictures were still displayed despite Google deleting these pictures several times on Mosley’s request. He then filed an application against Google in the Hamburg Regional Court.
The Hamburg Regional Court delivered a unanimous decision. The central issues for the Court’s determination were whether Google violated Mosely’s general right of personality, and whether Google could be held liable for the violation of Mosley’s rights and if its conduct could give rise to injunctive relief
Mosley submitted that he had taken action against Google only because no other responsible parties could be held liable as it was not possible for him to act against thousands of (unidentifiable) disseminators worldwide. He argued that Google operates a “constitutive element” of the Internet which enables internet users to search for content that would generally not be findable without the Google search or with competing searches [para. 18]. Mosley submitted that the exclusion of certain content would not constitute a resource-intensive, costly or technically sophisticated endeavor for Google, as it already had effective filter mechanisms against certain other types of offensive content. He maintained that the pictures encroached on his intimate sphere and violated his human dignity, and the dissemination by Google’s search engine had an intense impact on him and his reputation. Mosley submitted that the marginal technical effort from Google to exclude these pictures could not overweigh his substantial interests in their exclusion.
Google sought a dismissal of the claim on that grounds that the relief sought was not feasible as when it had to use a compulsory filter system the image search service would no longer be provided in the same manner and with the same functionality as normal. It explained that this technical action required time and computing power. In addition, Google argued that there is a prohibition of a general obligation to monitor under article 15 of the European Parliament’s Directive 2000/31/EC (E-Commerce Directive) and section 7(2) of the German Telemedia Act (Telemediengesetz, TMG), and that a filter obligation would interfere with Google’s own substantial interests as well as the rights of third users, including entrepreneurial freedom, freedom of information and the fact that Google was not the actual injurer. Google also relied on the liability privileges under the Telemedia Act.
The Court noted that the context of the pictures was understandable on its own, without any language skills or further textual reporting, because of Mosley’s high profile and the nature of the pictures.
In assessing whether Google violated Mosely’s general right of personality, the Court held that Mosley’s right to his own image within his general right to personality under article 2(1) in connection with article 1(1) of the German Basic Law was implicated because he was sufficiently identifiable on the published images and could be recognized by family, friends or other circles of persons. To determine the degree of the infringement, the Court referred to its jurisprudence, and relied on the “sphere theory” (Sphärentheorie) which holds that three spheres must be distinguished within the general right to personality: the social sphere, the private sphere (Privatsphäre) and the intimate sphere (Intimsphäre). The Court determined that the depiction of Mosley during sexual acts in a private room is a part of the intimate sphere, and stated that the intimate sphere “enjoys special protection, because it belongs to the core of human dignity of the right of personality” and so “constitutes the closest scope of personality and enjoys the strongest protection against the violations of third parties” [para. 137]. The Court held that, when balancing that intimate sphere against the right to freedom to expression under article 5(1) of the German Basic Law or article 10 of the European Convention on Human Rights (ECHR), the intimate sphere normally outweighs the interest of freedom of expression and an encroachment into that intimate sphere is permissible only in exceptional cases.
The Court rejected the position that there was a prevailing interest of the media to justify the publication of Mosley’s images as there was neither a legitimate interest of the public in information, nor were the images artworks protected under article 5(3) of the German Basic Law or constituted “contemporary history portraits” within the meaning of section 23(1) Law on Copyright in Works of Fine Arts and Photography (Kunsturhebergesetz, KUG).
Accordingly, the Court held that the public dissemination of the images without Mosley’s consent violated his right to one’s own image within his general right to personality under article 2(1) in connection with article 1(1) of the German Basic Law and article 8 of the ECHR. It added that, in the present case, it was not conceivable that the images could be published permissibly in any representation or context.
In examining whether Google could be held liable for the violation of Mosley’s rights and so whether its conduct could give rise to injunctive relief, the Court noted that it did not need to determine whether “the search results displayed by it on the basis of a user’s search query are to be regarded as its own or third-party content, because in both cases [Google] would not be exempt from liability” [para. 143]. The Court held that, consistent with European Court of Justice jurisprudence, the prohibition of a general obligation to proactively monitor does not preclude monitoring obligations in specific cases to detect and prevent activities which are unlawful under national law.
The Court also stated that any violator (Störer) was liable for injunctive relief. According to the Court, a violator is “anyone who – without being a perpetrator or participant – in any way willingly and adequately-causally contributes to the violation of the protected legal interest” [para. 145]. Although Google only reproduces third-party content by crawling, indexing and displaying search results, it willingly and adequately-causally contributed to the dissemination of the infringing images. Accordingly, the Court held that Google was a violator. The Court referred to the case law of the Federal Court of Justice and noted that the liability of a search engine operator (as a violator) requires the violation of “reasonable and feasible verification obligations” (Prüfpflichten) [para. 148]. The Court found that verification duties depended on the circumstances of the individual case, especially on the severity of the infringement, and were violated if the service provider had been made aware of an infringement and did not take sufficient precautions to prevent similar infringements.
Applying the law to the present case, the Court held that Google did not take any action to prevent future infringements even though Mosley had sufficiently brought them to Google’s attention. The Court stressed that the severity of the infringement of Mosley’s intimate sphere was evident to Google and did not require further investigations or an extensive weighting of the conflicting rights. The Court ruled that the prohibition on the dissemination of the images was general and not limited to a certain context or URL (notice-and-takedown) as the deletion of single images was insufficient to fulfill Google’s verification obligations given the severity of the infringement. Additionally, Mosley had claimed injunctive relief against numerous persons other than Google beforehand, but due to Google’s service, the images had been repeatedly re-distributed. The Court rejected Google’s argument that it had no appropriate filter software, especially since it did not prove that it at least took efforts to develop such software or procedures. The Court confirmed that the use of a filter does not interfere with European or national law, because filtering in such a case does not mean a proactive verification obligation, but a measure “to prevent further similar violations of rights after a violation of the general right of personality has already occurred” [para. 162].
Accordingly, the Court held Google liable for the violation of Mosley’s general right of personality and granted the injunctive relief for specific images, under sections 823(2), 1004(1) analog German Civil Code (Bürgerliches Gesetzbuch, BGB) in connection with sections 22, 23 KUG. However, the Court dismissed the claim in respect of a number of other images because these did not violate Mosley’s general right to personality as they did not distinctly and directly depict sexual acts or content.
Google appealed to the Higher Regional Court of Hamburg (7 U 14/14), but the proceedings were settled without a decision.
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